Union End Times: The Supreme Court’s Fatal Attack on Public-Sector Workers

Photo by Supermac1961 | CC BY 2.0

The courts have always been an instrument of plutocratic power. But the war against American workers has intensified in Trump’s America. With its recent rulings, Harris v. Quinn (2014) and Janus v. American Federation of State, County and Municipal Employees (2018), the Supreme Court has set American workers’ rights back decades. Through these cases, the court is hammering the final nails in the coffin of organized labor, threatening what little remains of unionization in America. While just 11 percent of Americans are members of a union – most of which are in the public sector – the Janus case threatens to destroy what little remains of the economic foundation of state and local unions. A full collapse of unions in America appears to be increasingly likely in its aftermath.

The Harris case was a prelude to Janus, with the Supreme Court ruling that home care workers could opt out of paying “fair share” union dues. Under state law (at least before the Janus case), all employees operating in a union workplace were required to contribute to these dues. The logic behind these forced payments was simple: since all workers (whether in the union or not) are protected by the union’s collective bargaining agreements (which secure pay raises and other benefits for employees), all should be compelled to pay their “fair share” in helping secure those benefits. With Janus, fair share union laws have been overturned for all public-sector workers across 23 states – including Illinois – where the Janus and Harris cases originated.

To provide context, the Janus case traces back to the protests of one Mark Janus, a state of Illinois employee for the Department of Healthcare and Family Services. Janus filed a lawsuit against the American Federation of State, County, and Municipal Employees (AFSCME); he was angry at being forced to pay union dues to the tune of $44.58 per month, and $535 a year. As the Supreme Court reflected in its opinion, Janus objected to the dues since he opposes “many of the public policy positions that [his union] advocates,” including the demands it makes via the collective bargaining process. Janus felt that the union’s “behavior in bargaining does not appreciate the current fiscal crisis in Illinois and does not reflect his best interests or the interests of Illinois citizens.” In other words, the Janus case’s legal foundation is based on the plaintiff’s reactionary worldview, and his belief that collective bargaining is politically unacceptable and that public-sector unions are illegitimate political actors.

But the Janus decision is a ruling in search of a problem. The court has bizarrely decided to make union dues into a “free speech” issue, despite most union activities being of little direct relevance to speech. Writing for the court’s majority in a 5-4 decision, Justice Samuel Alito laments “the heavy burden that agency fees [union dues] inflict on nonmembers’ First Amendment rights.” And the court sided with Janus, specifically with the plaintiff’s complaint that “non [union] member fee deductions are coerced political speech,” and that “the First Amendment forbids coercing any money from the nonmembers” of public-sector unions. As Alito wrote, reflecting the court majority’s sentiment:

We have held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all’…Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues – say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this…When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning.

As a professor and as someone who spent years in Illinois serving as an elected union representative and collective bargaining negotiator for my local union affiliate of the Illinois Federation of Teachers (IFT), I find Alito’s comments to be highly embarrassing and irresponsible. They reveal a complete lack of awareness, and a staggering incompetence, regarding what it is that unions actually do with members’ and nonmembers’ dues. His hypothetical straw man argument that being forced to pay union dues is the equivalent of a state requiring residents to support a political party’s proposals is absurd on the face of it, and it speaks to the blatant intellectual dishonesty of Alito and other members of the court’s majority. Furthermore, the vast majority of union activities have little to nothing to do with “free speech” in any meaningful sense, at least in the real world of union politics, and outside of the fantasies of the reactionaries on the Supreme Court.

Drawing on my experiences helping to coordinate a local IFT-affiliate in central Illinois, I can authoritatively say that the breakdown for union fee spending looked something like this:

+ Money was allocated to the faculty union’s legal fund, to represent members bringing complaints or charges forward against the college and its administration, in cases when both were in violation of the language of the collective bargaining agreement.

+ Funds were set aside for various social outings, including food/dinner functions, and drinks, and to promote solidarity between union members.

+ A small salary was allocated for the union president of $5,000 a year, to compensate he/she for all the work involved in representing faculty by bringing forward grievances, and for coordinating all other union activities.

+ Funds were also set aside to pay a nominal fee (less than a few thousand dollars) to each of the three members of the collective bargaining team, who spend countless hours negotiating/arguing with college administration in pursuit of pay raises and other benefits for dues-paying union and non-union members.

+ Fees were paid to the IFT for various activities funded by the union, including political lobbying, public outreach campaigns, salaries of IFT representatives, and the salary of the IFT lead negotiator who aided us during our collective bargaining sessions with the college.

Of all the costs discussed above, only the last one had anything directly to do with the First Amendment and free speech, at least in any direct or meaningful way. It is not surprising that many conservatives who pay dues to unions would object to the various political activities and lobbying of unions like the IFT. But such concerns should have been moot in the Janus case, in that the Supreme Court already set a precedent in the 1977 Abood v. Detroit Board of Education case, which ruled that union nonmembers are able to recover the costs of any lobbying undertaken by unions as related to political advocacy, and as funded by union dues.

Considering the previous protections against funding union advocacy established in Abood, it is bizarre that the Supreme Court has so radically expanded its definition of “free speech” in the workplace, at least regarding non-speech-related union activities such as collective bargaining. Collective bargaining is a political act, but it represents an economic transaction between three parties – the employer, the union itself, and those paying dues to the union. This is not a “free speech” issue, strictly speaking. Through collective bargaining, unions do not prohibit those who pay dues from expressing their political opinions, whatever they may be. Rather, collective bargaining simply seeks to enhance workers’ economic standing by securing higher pay and benefits for all those employed in a given workplace.

The court’s majority in the Janus ruling disingenuously uses the rhetoric of “free speech” in a naked union-busting effort on the part of the court’s five conservatives, who make no effort to mask their contempt for the very act of collective bargaining itself, which the court’s majority refers to in its judgment as “coercive” in nature. It doesn’t get much more partisan than denouncing unions as “coercive” for securing pay raises for their workers. By allowing workers to withhold fair share union dues, the Supreme Court has effectively chopped out the financial foundation of public-sector unions – a foundation that is necessary to compensate union representatives for the arduous task of collectively bargaining with employers for pay raises, health insurance, and other benefits.

The Supreme Court’s ruling is nakedly partisan and plutocratic in that it represents hypocritical effort to destroy unions, while leaving governmental administrators and corporate executives free to suppress free speech in the workplace. The Supreme Court has never staked out a position that employees of private corporations and businesses have free speech in the workplace, as related to the running of companies, or in relation to any other activities that a corporation engages in. And the court has issued numerous rulings – including Connick v. Myers (1983) and Garcetti v. Ceballos (2006), establishing that public-sector employees do not have free speech rights regarding day-to-day occupational activities. What is the objective basis for denying basic free speech rights to public and private sector employees in their workplaces, while insisting that the simple act of paying dues is a part of one’s “free speech” rights, in relation to collective bargaining? The court’s ruling here smacks of conservative opportunism. The court’s conservative majority is happy to create employee “rights” from thin air in the case of non-speech related activities funded by union dues, while exempting public and private sector employers from any responsibility for respecting free speech.

The court’s majority is also guilty of a melodramatic portrayal of the allegedly taxing nature of union dues, which it greatly exaggerates. It’s quite an achievement for neoliberal propaganda to claim that a $44 fee a month, and $535 in annual union fees represents a “heavy burden” on employees, especially when they get a lifetime of pay raises and other benefit protections in return. Union members in the United States earn significantly higher incomes than those who are not in unions, even after controlling for individuals’ education levels, suggesting that the average union worker comes out well ahead financially, despite paying dues.

In her dissenting minority opinion in the Janus case, Justice Sonya Sotomayor took issue with the majority’s “aggressive” attempts to use the First Amendment, as applied against fair share union laws. Justice Elena Kagan accused the majority of “weaponizing” the First Amendment, in the court’s war on public-sector unions. I find it difficult to disagree with these assessments of the Janus ruling, which represents a blatant case of union-bashing – one that looks like it is laying the foundation for the demise of public sector unions in America.

There should be no question that the Janus ruling is a huge victory for authoritarianism the workplace. Without fair share dues, unions will struggle to raise the resources to function in terms of negotiating collective bargaining agreements (CBAs). CBAs are one of the few democratic mechanisms left in the workplace. They allow worker-elected union representatives to negotiate for pay increases and benefits for workers – benefits in which rank-and-file union members can then vote to accept or reject. Without those dues, public sector unions are in danger of extinction, and individual workers have little to no leverage in demanding better pay/benefits. Thanks to Trump, Alito, and the other right-wing fanatics at the Supreme Court, public-sector unions have now become an endangered species in America. Record corporate profits, stagnating-to-declining middle and working-class wages, and record inequality apparently weren’t enough for the plutocrats that run Washington. These people won’t be happy until the last trace of democracy in the workplace is eradicated.

Those who are angry with the arch-plutocratic biases of the Trump administration and its cronies on the Supreme Court have two choices moving forward. They can sit back and continue to watch the destruction of basic worker protections in America, which will produce greater worker insecurity and growing inequality.  Or they can begin to fight back, allowing theJanuscase to become a catalyst for a renewed unionization of America, thereby contributing to the re-democratization of the workplace. This effort will require workers to build a political party that genuinely embraces working-class values, contrary to the Supreme Court’s war on American workers.

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Anthony DiMaggio is an Assistant Professor of Political Science at Lehigh University. He holds a PhD in political communication, and is the author of the newly released: Selling War, Selling Hope: Presidential Rhetoric, the News Media, and U.S. Foreign Policy After 9/11 (Paperback: 2015). He can be reached at: anthonydimaggio612@gmail.com

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